--*> 


1 


\S16i' 


Geneva  Award,  Petition 
Ship  Delphine 

by 

K,W.  Fetcalf 


kV 


GENEVA   AWAED, 


Pi 


I'liTITION  OF  E.  W.  ,MCTCALF. 


SHIP    DELPHINE. 


To  the  Jfonorahle  Senate  of  the  United  States  of  America : 

The  undersigned,  builder,  part  owner,  and  agent  for  all 
the  owners  of  ship  Delphine^  respectfully  prays  that  H.  R. 
bill  No.  2685  may  receive 'the  early  and  favorable  consid- 
eration of  your  honorable  body. 

The  Queen's  proclamation,  granting  belligerent  rights, 
made  it  possible  foi'  Confederate  vessels  of  war  to  exist  on 
the  ocean.^^^ 

Through  the  sympathy  and  assistance  of  the  English 

"*  The  Queen's  proclamation  granting  belligerent  rights  Was  issued 
before  Mr.  Adams,  our  Minister,  had  been  received  by  the  British 
government.  At  his  first  interview  he  said :  "  I  must  be  permitted 
to  express  the  great  regret  I  had  felt  on  learning  the  decision  to 
issue  the  Queen's  proclamation,  which  at  once  raised  the  insurgents 
to  the  level  of  a  belligerent  State.  *  *  *  j^^  pronounced 
the  insurgents  to  be  a  belligerent  State  before  they  had  ever  shown 
their  capacity  to  maintain  any  kiud  of  warfare  whatever.  *  * 
It  considered  them  a  maritime  power  before  they  had  ever  exhibited 
a  single  privateer  on  the  ocean." — {Cor.  concerning  Claims  vs.  G-. 
B.,  Vol.  1,  />/).  183-4.) 

Our  Government  said,  Oct.  5,  1863 :  "  The  successive  prepara- 
tions of  hostile  naval  expeditions  in  Great  Britain  are  regarded 
here  as  fruits  of  that  injudicious  proclamation." — (^j.  270.)  And 
Jan.  6,  1864 :  "  On  our  part,  we  trace  all  the  evils  to  an  unneces- 
sary and,  as  we  think,  an  anomalous  recognition  by  Her  Majesty's 
government."     *     *     — (^;.  273.) 

In  the  notice  of  our  Government  to  that  of  Great  Britain,  that 
she  would  be  held  responsible  for  the  depredations  of  the  /Shenan- 
doah befoi'e  she  reached  Australia,  Mr.  Adams  said:  "  I  am  reluctantly 
compelled  to  acknowledge  the  belief  that,  practically,  this  evil  has 
its  origin  in  the  first  step  taken,  *  *  of  acknowledging  persons 
as  a  belligerent  power  on  the  ocean  before  they  had  a  single  vessel 
of  their  own  to  show  floating  upon  it." — The  result  of  that  proceed- 


2 

Government  and  people,  such  vessels  were  dispatclied  to 
prey  upon  American  commerce/^^ 

Twelve  yeai's  ago,  (Dec.  29,  18(54,)  one  of  these  ves- 
sels— the  Shenandoah — destroyed  my  ship  Delphine. 

The  circumstances  were  such  that  the  American  people 
believed  England  should  be  held  responsible  for  this  and 
all  similar  destructions.'^^ 


ing  has  been  that  the  power  in  qnestion,  so  far  as  it  can  be  entitled 
to  the  name  of  a  belligerent  on  the  ocean  at  all,  was  actvally  created 
in  consequence  of  the  recognition,  and  not  before ;  and  all  that  it 
has  subsequently  attained  of  such  a  position  has  been  thi'ough  the 
labor  of  the  subjects  of  the  very  country  which  gave  it  the  shelter 
of  that  title  in  advance. 

Neither  is  the  whole  case  stated  even  now.  The  results  equally 
show  that  the  ability  to  continue  these  operations  with  success 
during  the  Avhole  term  of  four  j'ears  that  the  war  has  continued, 
has  been  exclusively  owing  to  the  opportunity  to  make  use  of  this 
granted  right  of  a  belligerent  in  the  courts  and  the  ports  and  har- 
bors of  the  very  power  that  furnished  the  elements  of  its  existence 
in  the  outset.  In  other  words,  the  Kingdom  of  Great  Britain  can- 
not but  be  regarded  by  the  Government  I  have  the  honor  to  repre- 
sent, as  not  onlj'  having  given  birth  to  this  naval  belligerent,  but 
also  as  ha\'ing  nursed  and  maintained  it  to  the  present  hour.     *     * 

So  far  as  I  am  aware,  not  a  single  vessel  has  been  engaged  in 
these  depredations  excepting  such  as  have  been  so  furnished  ;  unless 
indeed  I  might  except  one  or  two  passenger  steamers  belonging  to 
persons  in  New  York,  forcibly  taken  possession  of  whilst  at  Charles- 
ton in  the  beginning  of  the  war,  feebly  armed,  and  very  quickly  ren- 
dered useless  for  any  aggressive  purpose.         *         *         * 

'2'  In  a  formal  note  to  the  British  government,  dated  May  20, 
1865,  our  Government  declared — 

J^irst.  That  the  act  of  recognition  *  *  was  precipitate  and 
vmprecedented. 

iSecond.  That  it  had  the  elfect  of  creating  these  parties  belliger- 
ents after  the  recognition,  instead  of  merely  acknowledging  an  ex- 
isting fact.     *     * 

J^hurth.  That  diiring  the  whole  course  of  the  struggle  in  America, 
of  nearly  f(nu'  years  in  duration,  there  has  been  no  appearance  of 
the  insurgents  as  a  belligerent  on  the  ocean,  excepting  in  the  shape 
of  British  vessels,  consti'ucted,  equipped,  supplied,  manned  and 
armed  in  British  ports.     *     *     {p.  304.) 

<3'  Kint/i.  That  the  injiuies  thus  received  are  of  so  grave  a  nature 
as  in  reason  and  justice  to  constitute  a  valid  claim  for  reparation 
and  indemnification.     *     * 

The  nation  that  recognized  a  power  as  a  belligerent  before  it  had 
built  a  vessel,  and  became  itself  the  sole  source  of  all  the  belligerent 


•  ••.••••••      ••     •••"•        ,• 

»  •  •  •••  •«•  ••«•«     •••       •      ..  • 

;  .    •    •    •*.*.• .•  •  .  . 


Both  bef oi'e  ^*^  and  after  ^^^  my  ship  was  destroyed,  the 


character  it  has  ever  possessed  on  the  ocean,  must  be  regarded  as 
responsible  for  all  the  damage  that  has  ensued  from  that  cause. — 
{p.  304.) 

*  *  "I  have  been  singularly  unfortunate  in  my  corres- 
pondence if  I  have  not  given  it  to  be  clearly  understood  that  a  vio- 
lation of  neutrality  by  the  Queen's  iDroclamatiou,  and  kindred  pro- 
ceedings of  the  British  government,  is  regarded  as  a  national  wrong 
and  injiuy  to  the  United  States ;  and  that  the  lowest  form  of  satis- 
faction for  that  national  injury  that  the  United  States  could  accept 
would  be  found  in  an  indemnity  without  reservation  or  compromise 
by  the  British  government,  to  those  citizens  of  the  United  States 
who  had  suffered  individual  injury  and  damages  by  the  vessels  of 
war  unlawfully  built,  equipped,  manned,  fitted  out  or  entertained 
and  protected  in  the  British  ports  and  harbors.         *         *         * 

"  William  H.  Seward. 
'•Charles  Francis  Adams."  — {Cor.,  <S;c.,  FoZ.  3, ^:).  6«8.) 

'**  (iVb.  1171.)  Department  of  State, 

Washington,  Dec.  3,  1864. 

Sir  :  Information  has  reached  this  department  (from  William  H. 

Dabney,  Esq.,  the  consul  of  the  United  States  at  Teneriffe)  to  the 

effect  that  the  British  steamer  Laurel,  reported  to  have  sailed  from 

Liverpool,  with  the   pirate  Semmes  and  one  hundi'ed  picked  men, 

met  by  appointment  the  English  steamer  Sea  King  at  the  Desertas 

of  the  Madeii'a,  and  there  transferred  to  the  Sea  King  Semmes  and 

crew,  armament,  munitions,  and  stores,  and  received  from  the  Sea 

King  Captain  Corbett  and  crew,  who  brought  her  to  the  Desertas, 

^  J  and  who,  on  the  22d  of  the  same  month,  were  landed  at  Teneriffe  for 

%^  passage  home. 

Thus  it  would  seem  that  the  notorious  commander  of  the  Alabama 
V  has  again   obtained  command   of   a  British-built  vessel,  which  has 
^^  been  supplied  bj'  another  British  vessel  with  men,  arms,  and  muni- 
tions carried  out  from  a  British  port,  and  is  now  at  large  on   the 
?^   high  seas  for  the  purpose  of  committing  depredations  upon  the  com- 
Nj^  merce  of  the  United  States. 

^        I  toill  thank  you  to  bring  the  case  under  the  attention  of  Earl 

^  RuRsell,  protesting  against  any  such  arrangement  as  that  above  iti- 

>    dicated,  and  iiifortning  his  lot-dshi^)  that  if  it  is  correctly  stated, 

this  Government  considers  that  Her  Majesty  s  government  may  be 

^   held  justly  res2)onsible  for  any  losses  accruing  to  citizens  of  the 

^    United  States,  through  the  depredations  of  the  Sea  King,  \_Shen- 

^  andoah.'] 

\'  I  am,  su',  youi'  obedient  servant,  William  H.  Seward. 

"^       Charles  Francis  Adams,  Esq.,  &c. 
i.^  — {Correspondence  concerning  Claima  vs.  Gt.  Brit.,  Vol.  3,  ji.).  330.) 

'5i  {]^o.  1250.)  Department  of  State, 

Washington,  Jayi.  27,  1865. 
Sir :  Referring  to  my  dispatch  of  the  3d  ultimo.  No.  1171,  in  regard 
to  the  piratical  vessel  Sea  King  or  Shenandoah,  and  to  subsequent 

4261^9 


Government  of  the  United  States  gave  definite  notice  that 
it  ^vould  hold  Great  Britain  responsible  for  this  specific 
damage. 

After  long  coiTespondence  and  delay,  England  having 

correspondence  on  the  subject,  I  now  transmit  a  copj  of  a  dispatch 
of  the  29th  of  November  last,  from  James  Monroe,  Esq.,  the  consul 
of  the  United  States  at  Rio  de  Janeiro,  containing  a  statement  in  rela- 
tion to  the  destruction  of  ionr  United  States  merchant  vessels,  with 
their  cargoes.         *         *         *  It  appears  fi*om  the  information 

presented  with  Mr.  Monroe's  dispatch,  that,  with  the  exception  of 
the  name  of  the  commander,  the  representation  contained  in  my  No. 
1171  is  corroborated.  Under  these  circumstances  I  have  to  request 
you  to  inform  Her  Majesty  s  governmeitt  that  the  United  /States 
will  claim  redress /'or  the  hijuries  and  losses  injlicted  on  their  citi- 
zens by  the  depredations  of  the  Sea  King  or  Shenandoah. 

I  am,  sir,  your  obedient  servant, 
^  William  H.  Seward, 

Charles  Francis' Adams,  Esq.,  &c.,  &c.,  &c. 

{Correspondence,  Claims,  Jtc,    Vol.  3,  2^-  335.) 

Legation  of  the  United  States, 

London,  April  7,  18G5. 

My  Lord  :  I  have  the  honor  to  transmit  to  you  a  copy  of  a  letter 
addressed  to  the  Secretary  of  State  at  Washington,  by  the  consul 
of  the  United  States  at  Rio  Janeiro,  Mr.  Monroe,  making  a  report 
of  the  depredations  committed  upon  the  commerce  of  the  United 
States  by  the  vessel  known  in  the  port  of  London  as  the  Sea  King, 
but  since  transformed  into  the  Shenandoah  by  a  process  already 
fully  explained  in  a  note  which  I  had  the  honor  to  address  to  yoiu* 
lordship  on  the  18th  November  last.  I  regret  to  be  obliged  to  add 
that  this  same  vessel  has  been,  since  the  date  of  JMi*.  Monroe's  letter, 
heard  of  at  Melboiu'ne,  from  which  place  further  details  of  similar 
outrages  have  been  received     *     *     *     * 

Were  there  any  reasons  to  believe  that  the  operations,  carried  on 
in  the  ports  of  Her  JMajesty's  kingdom  and  its  dependencies  to  main- 
tain and  extend  this  systematic  depredation  upon  the  commerce  of 
a  friendly  people,  had  been  materially  relaxed  or  prevented,  I  should 
not  be  under  the  })ainfnl  necessity  ojt' amioufici/ig  to  your  lordship 
the  fact  that  my  Governuient  cannot  aoold  entailing  upon  the  gov- 
ernment of  (rreat  Jiritain  the  resjyonsibility  for  this  damage.     *     * 

In  view  of  all  these  circumstances,  I  am  instiiicted,  while  insist- 
ing on  the  protest  heretofore  solemnly  entered  against  that  proceed- 
ing, further  respectfully  to  represent  to  your  lordship  that,  in  the 
opinion  of  my  Government,  the  gi'ounds  on  which  Her  Majesty's 
government  have  rested  their  defence  against  the  responsibility  in- 
cuiTed  in  the  manner  heretofore  stated,  for  the  evils  that  have  fol- 
lowed    *     *     have  now  failed.     *     *     * 

Charles  Francis  Adams. 
Right  Hon.  Earl  Russell,  &c.,  &c.,  &c.  {Same,  j).  345.) 


refused  to  meet  this  responsibility,  the  President  of  the 

United  States,  in  a  message  to  Congress,  December  5, 

1870,  recommended  that  the  claims  of  private  citizens  who 

had  suffered  like  myself  should  be  audited  and  paid  by 

the  United  States,  and  held  by  this  Grovernment  against 
England.^6) 

Before  there  was  time  for  Congress  to  act  on  this  ad- 
vice, the  Joint  High  Commission  was  appointed,  to  which, 
at  its  fourth  conference,  the  American  Commissioners  pro- 
posed that  it  should  then  and  there  agree  upon  a  gross 
"  sum  which  should  be  paid  by  Great  Britain  to  the  United 
States  in  satisfaction  of  all  the  claims." 

The  British  Commissioners  declined  this  proposal,  but 
the  Conunission  framed  the  Treaty  of  Washington,  by 
which  "  all  the  claims  growing  out  of  the  acts  of  the  sev- 
eral vessels  "  were  referred  to  the  Greneva  Tribunal. 

The  Treaty  established  three  new  rules  of  international 
obligation,  under  Avhich  it  required  the  Tribunal  to  decide 
cei"tain  international  questions,  but  by  Art.  VII  it  author- 
ized the  Tribunal,  "  if  it  thought  proper,"  to  do  what  the 
English  Commissioners  had  declined  to  take  the  responsi- 
bility of  doing,  viz  :  "  proceed  to  award  a  sum  in  gross  to 
be  paid  by  Great  Britain  to  the  United  States  for  all  the 
claims  referred  to  it." 

On  the  14th  September,  1872,  ''The  Tribunal,  making 
use  of  the  authority  conferred  upon  it  by  Art.  VII  of  the 

(6)  "  The  Cabinet  of  Loudon,  so  far  as  its  views  have  been  ex- 
pressed, does  not  appear  to  be  willing  to  concede  that  Her  Majesty's 
government  was  guilty  of  auj^  negligence,  or  did  or  permitted  any 
act,  during  the  war,  by  which  the  United  States  have  just  cause  of 
complaint.  Our  firm  and  uualterable  convictions  are  directly  the 
reverse.  I  therefore  recommend  to  Congress  to  authorize  the  ap- 
pointment of  a  commission  to  take  proof  of  the  amount  and  the 
ownership  of  these  several  claims,  on  notice  to  the  representatives 
of  Her  Majesty  at  Washington,  and  that  authority  be  given  for  the 
settlement  of  these  claims  by  the  United  States,  so  that  the  Govern- 
ment shall  have  the  ownership  of  the  private  claims  as  well  as  the 
•responsible  control  of  all  the  demands  against  Great  Britain." 


said  Treaty,"  awarded  a  gross  sum,  paya>)le  in  one  year, 
"  as  tlie  indemnity  to  be  paid  by  Great  Britain  to  the 
United  States  for  tlie  satisfaction  of  all  the  claims  referred 
to  the  consideration  of  the  Tribunal,"  and  declared  "that 
all  the  claims  I'eferred  to  in  the  Treaty,  as  submitted  to 
the  Tribunal,  are  lierehij  fully,  perfectly,  and  finally  set- 
tled, •"•'  *  whether  the  same  may  or  not  liave  been  pre- 
sented to  the  notice  of,  or  made,  preferred,  or  laid  before 
the  Tribunal." 

When  Congress  next  assembled,  the  President,  in  his 
message,  said :  "It  will  be  the  province  of  Congress 
to  provide  for  the  distribution  among  those  who  may  be 
entitled  to  it  of  their  respective  shares  of  the  money  to  be 
paid,  *  *  ■"•'  it  is  deemed  advisable  that  no  time  be  lost 
in  making  an  examination  of  the  several  cases  in  which 
indemnification  may  be  due." 

It  soon  became  appai'ent  that  opinions  differed  as  to 
who  wei'e  entitled  to  it — as  to  what  the  cases  were  in 
which  indemnification  miiJ:ht  Ije  due. 

This  difference  arose  from  different  theories  as  to  the 
relation  of  the  Government  of  the  United  States  to  the 
case  and  the  fund. 

One  party  held  that  the  Government,  in  the  whole 
matter,  acted  as  agent  or  attorney  for  private  citizens 
who  had  claims  against  England; 

That  as  such  attorney  it  had  prosecuted  the  claims  of 
its  several  clients  before  the  great  Court  of  Geneva; 

Tliat  the  interlocutory  decisions  of  international  ques- 
tions by  this  Court  were  final,  as  to  determining  wliat 
claims  were  included  in  and  sliould  be  paid  from  the 
gross  sum  awarded; 

That  this  attorney  had  no  discretionary  right  to  adjudge 
the  several  cases  on  their  merits,  and  to  distriljute  the 
fund  collected  to  those  who  in  its  own  judgment  had 
suffei'ed  by  England's  fault,  to  the  exclusion  of  tho§e 
wliom  that  fault  liad  einichcd. 


This  theory  was  earnestly  and  ably  maintained  by  at- 
torneys for  Insurance  C'  »mpanies,  in  order  to  establish 
their  right  by  subrogation  to  payment,  from  the  award, 
of  what  they  had  paid  for  destructions,  without  taking 
into  account  what  they  had  received  for  war  premiums. 

Hon.  Mr.  Ev^arts,  as  such  attorney,  referred  to  the 
claims  of  Insurance  Companies  as  "  placed  in  the  hands  of 
the  Gov^ernment  for  collection,"  and  said  to  the  Judiciary 
Committees  :  "  The  insurer  does  not  apply  for  a  share  of 
this  indenmity  because  he  lias  lost  money  during  or  by 
reason  of  the  war." 

These  attorneys  seemed  awai'e  that  on  no  other  theory 
than  that  of  hard  legal  necessity  would  the  American 
Congress  and  people  allow  such  claims  of  Insurance  Com- 
panies, and  thus  consent  to  pay  the  money  to  those  who 
were  enriched  by  the  fault  for  which  it  was  awarded,  to 
the  exclusion  of  those  who,  like  myself,  were  impover- 
ished by  that  fault. 

Others  held  the  theory  that  in  the  whole  matter  the 
Government  of  the  United  States  acted  for  itself  as  a 
nation,  to  maintain  its  own  honor  and  establish  its  own 
rights,  both  of  which  required  it  to  use  due  diligence  to 
protect  its  citizens  from  wrongful  injury ; 

That  this  nation  was  itself  the  plaintiff  in  the  great 
case  at  Geneva ; 

That  it  called  upon  its  aggrieved  citizens  to  appear  as 
witnesses,  not  plaintiffs,  at  the  Court ; 

That  the  nation  had  the  right  to  manage  the  whole 
case  in  the  manner  it  deemed  best  for  all  its  people ; 

That,  in  the  exercise  of  this  right,  it  had  wisely  so  con- 
ducted the  case  before  the  Tribunal  as  to  insure  such  de- 
cisions as  would  be  most  advantageous  to  the  whole  nation 
in  the  future,  '^'^^  reserving  to  itself  the  right  to  judge  who 

'7)  iVo.  18.     Mr.  Fish  to  3Ir.  Sehenck. 

*  *  *  ''In  this  correspoudence  I  have  gone  as  far  as 
prudence  would  allow  in  intimating  that  we  neither  desu'ed  or  ex- 


8 

of  those  entitled  to  its  protection  had  suffered  loss  by  the 
acts  complained  of,  and  were  therefore  entitled  to  indem- 
nity from  the  amount  recovered  ; 

That  the  arbitration  was  between  the  United  States  and 
Endand,  ^®^  and  in  no  sense  between  the  United  States 
and  its  own  citizens ; 

That  the  Tiibunal  intentionally  left  this  nation  in  pre- 
cisely the  same  relation  to  the  "  gross  sum  "  it  awarded 
"  in  satisfaction  of  all  the  claims  "  as  the  action  of  the 
Joint  High  Connnission  would  have  left  it  to  the  sum  agreed 
upon  had  the  pro})osition  for  it  to  agree  upon  "  a  gross 
sum  in  satisfaction  of  all  the  claims  "  been  acceded  to ; 

pected  any  pecuniary  award,  and  that  we  should  be  content  with  an 
award  that  a  state  is  not  liable  in  pecuniary  damages  for  the  indirect 
results  of  a  failure  to  observe  its  neutral  obligations.  It  is  not  the 
interest  of  a  country  situate  as  are  the  United  States,  with  theii' 
large  extent  of  sea-coast,  a  small  navy,  and  smaller  internal  pohce, 
to  have  it  established  that  a  nation  is  liable  in  damages,  &c.  *  * 
This  Government  expects  to  be  in  the  future  as  it  has  been  in  the 
past,  a  neutral  much  more  of  the  time  than  a  beUigerent.    ,  *       * 

"Hamilton  Fish." 
—{Papers,  <&c.     Vol.  2,  p.  476.) 

"  The  Arbitrators,  however,  disposed  of  the  question  *  *  in 
a  manner  entirely  satisfactory  to  this  Government,  and  in  accordance 
with  the  views  and  the  policy  which  it  had  maintained." — {Presi- 
dent's Message,  Dec.  2,  1872.) 

'8'  British  property  was  in,  and  British  underwriters  had  insured 
the  cargoes  of  ships  which  were  destroyed  by  the  Alabama.  They, 
claiming  that  by  the  Geneva  Award  American  citizens  had  been  in- 
demnified for  similar  loss,  asked  indemnity  of  their  government. 

Under  the  advice  of  the  law  officers  the  British  government  re- 
jected their  claim. 

During  debate  in  the  British  Parliament  Mr.  Anderson  asked  :  "  If 
we  were  obliged  to  pay  for  damage  sustained  by  the  Americans  by 
reason  of  the  conduct  of  the  Alabama,  why  were  we  not  equally 
bound  to  pay  for  the  damage  sustained  by  our  own  subjects  by  rea- 
son of  the  acts  of  that  vessel  ?  " 

Mr.  Gladstone,  then  Prime  ]\Iinister  of  England,  said :  It  ap- 
pears to  be  implied  that  the  Government  submitted  the  claims  of 
certain  persons  not  subjects  of  Her  Majesty,  to  arbitration. 

"  This  is  altogether  a  mistake.  Ho  claims  of  individuals  have 
been  submitted  to  arbitration  in  relation  to  the  Ahdxtma. 

"  What  loas  submitted  to  arbitration  was  entirely  a  question,  be- 
lt oeen  the  two  Governments.'" 
— {London  Times,  May  24,  1873.) 


9 

That  the  Government  of  the  United  States  was  careful 
to  guard,  by  especial  instruction  to  its  counsel,  against 
any  otlier  construction  of  the  Treaty  or  award ;  ^^> 

That  both  parties  to  the  Treaty  wished  to  leave  the 
nation  in  that  relation,  therefore  intentionally  embodied 
in  Art.  VII  of  the  Treaty  the  precise  words  of  the  orig- 
inal })rt)position,  "which  are  also  the  precise  words  of  the 
award ; 

Hence,  that  the  money  should  be  distributed  in  accord 
with  the  nation's  obligation  to  protect  its  citizens  from 
wrong ; 

That  indemnity  is  due  to  those  who  have,  through  the 

(9)  (J/^.  I^lsh  to  Mr.  Gushing,  and  same  to  Mr.  Evarts  and 
Mr.  Waife.) 

Sir  :  The  President  having  aiDpointed  you  one  of  the  counsel  of 
the  United  States  in  the  matter  submitted  to  the  Tribimal  of  Arbi- 
tration, to  meet  in  Geneva,  *  *  it  becomes  necessary  to  give 
you  briefly  the  President's  instructions  on  the  subject  of  yom* 
duties.       *       * 

The  President  desires  to  have  the  subject  discussed  as  one  between 
the  two  Gorermn€)its,  and  he  dii-ects  me  to  urge  upon  you  strongly 
to  secure,  if  possible,  the  award  of  a  sum  in  gross.  Li  the  discus- 
sion of  this  question,  and  in  the  treatment  of  the  entire  case,  you 
will  be  careful  not  to  commit  the  Government  as  to  the  disposition 
of  what  may  be  awarded.  *  *  The  Government  wishes  to 
hold  itself  free  to  decide  as  to  the  rights  and  claims  of  insurers, 
upon  the  termination  of  the  case.  If  the  value  of  the  property  cap- 
tured or  destroyed  be  recovered  iti  the  name  of  the  Governtneiit, 
the  distribution  of  the  amount  recovered  ruill  be  made  by  this  Gov- 
ernment, without  committal  as  to  the  mode  of  distribution.  It  is 
expected  that  all  such  committal  be  avoided  in  the  argument  of 
counsel.       *       *  Hamilton  Fish. 

— {Papers,  &c.     Vol.  2,  p.  414.) 

In  accordance  witii  these  instructions  our  counsel  said  to  the 
Tribunal : 

"  From  these  arrangements  of  the  Treaty  it  is  apparent  *  * 
Second.  That  these  claims  are  all  prefeiTed  by  the  United  States  as 
a  nation  against  Great  Britain  as  a  nation,  and  are  to  be  so  com- 
puted and  paid,  whether  awarded  as  'a  sum  in  gross,'  under  the 
seventh  article  of  the  Treaty,  or  awarded  for  assessment  of  amounts, 
uuder  the  tenth  article." 

The  Tribmial  acted  without  objection  upon  this  statement,  and 
ainarded  "  a  sum  in  gross,  in  satisfaction  of  all  the  claims" — as  far 
removed  as  possible  from  deciding  whom  the  United  States  should 
indemnify  fi-om  the  award. 


10 

fault  of  England,  suffered  such  especial  loss  on  the  sea 
that  they,  after  being  indemnified  for  sucli  loss,  will  still 
be,  equally  with  all  the  othei"  people  of  the  United  States, 
entitled  to  share  in  any  ])art  of  the  fund  which  may  re- 
main, and  that  no  others  are  entitled  to  it. 

The  advocates  of  this  theory  claim  that  it  is  vindicated 
by  all  the  history  and  record  of  the  case. 

The  Judiciary  Committees  of  both  Senate  and  House, 
to  which  the  subject  had  been  referred,  after  careful  con- 
sideration reported  bills  based  on  the  theory  that  no  legal 
right  or  fiduciary  ti'ust  restrains  Congress  from  the  exer- 
cise of  its  own  judgment  in  determining  who  were  the 
actual,  ultimate,  unindemnified  losers  by  the  acts  and 
faults  complained  of,  and  equitably  distributing  the  fund 
among  such  losers,  and  such  only. 

The  House  bill  specifically,  and  the  Senate  bill  practi- 
cally, provided  indemnity  to  Insurance  Companies  for 
losses  caused  "  by  either  or  all  cruisers  bearing  the  Con- 
federate flag." 

Both  bills  required  them  in  showing  such  loss  to  take 
into  account  the  extra  premiums  which  they  had  received 
for  war  risks. 

Tlie  friends  of  Insurance  Companies  in  both  Senate  and 
House  made  strenuous,  but  luisuccessful,  efforts  to  so 
amend  the  bills  as  not  to  restrict  insiu'ers  to  their  net 
loss. 

The  Senate  and  House  each  passed  its  bill,  and  in  this 
respect  just  as  reported  by  its  connnittee. 

The  bills  differed  broadly  in  their  provisions.  One 
created  a  new  Court  to  adjudicate  the  claims  on  the  fund; 
the  other  refeiTed  them  to  existing  Coiu'ts.  One  did  not, 
the  other  did,  provide  indemnity  for  loss  by  payment  of 
war  premiinns. 

Neither  House  concurring  in  the  other's  views,  a  con- 
ference connnittee  was  appointed,  which,  having  failed  to 
agree  uj)on  a  mode  of  distribution,  left  the  whole  subject 


11 

to  the  Forty-Tliird  Congress,  by  reporting  a  bill  (enacted 
and  approved  March  3,  1873)  providing  that  upon  the 
payment  of  the  money  awarded  at  Geneva  it  "shall  be 
invested  in  the  5  per  cent,  registered  bonds  of  the  United 
States,  to  be  held  sul)ject  to  the  future  disposition  of 
Congress." 

The  money  was  paid  by  Great  Britain  on  the  9th  of 
September,  1873,  and  immediately  so  invested. 

Dui'ing  the  first  session  of  the  Forty-Third  Congress 
the  H.  R,  Judiciary  Committee  listened  to  the  advocates 
of  different  theories  and  claims,  and  at  last  reported  a 
bill  which  allowed  payment  to  citizens  and  corporations 
of  the  United  States  out  of  the  money  paid  by  Great 
Britain — 

"  First.  For  all  loss,  destruction,  or  damage  by  any 
Confederate  cruiser,  for  whose  acts  the  Government  of 
the  United  States  have  made  demand  upon  the  Govern- 
ment of  Great  Britain ;"  *  *  *  and  "  to  all  insurers 
*  *  who  shall  show  that  the  war  premiums  actually  re- 
ceived by  them  did  not  equal  in  amount  the  losses  paid 
by  them  because  of  property  thereafterward  captured 
and  lost  or  destroyed  by  either  or  all  of  said  cruiser s^ 

Secondly.  To  those  who  had  paid  a  premium  for  war 
risks,  and  provided  that  Mutual  Insurance  Companies 
who  have  paid  a  loss  shall  be  indemnified  for  the  same. 

Amendments  relieving  Insurance  Companies  from  the 
obligation  to  take  into  the  account  their  receipts  for  war 
premiums ;  also  a  substitute,  offered  by  Mr.  Poland,  in 
the  interest  of  Insurance  Companies,  were  very  earnestly 
insisted  on  by  their  friends,  but  rejected.  The  proviso 
in  fay  or  of  Jfutual  Insurance  Companies  was  stricken  out 
by  a  vote  of  more  than  two  to  one,  and  the  bill  passed  in 
the  House  by  31  majority. 

The  Judiciary  Committee  of  the  Senate  adhered  to  its 
previous  action  creating  the  Court  of  Commissioners  of 
Alal)ania  Claims,  and  reported  a  bill,  which   j)i-actically 


12 

gave  indemnity  to  Insurance  Companies  for  actual  loss  by- 
all  Confederate  cruisers,  requiring  them  to  deduct  war 
pi-emiums  received  from  tlie  amount  of  their  gross  loss. 

It  provided  indemnity  for  other  sufFerers  by  the  Ala- 
bama, Florida,  and  their  tenders,  and  l)y  the  Shenandoah 
after  she  left  Melbourne,  requiring  tliem  to  deduct  from 
their  gross  loss  all  that  they  had  received  from  Insurance 
Conq^anies  or  otherwise,  but  as  yet  made  no  provision  for 
private  citizens  who  had  suffered  l)y  the  depi'edations  of 
the  other  Confederate  cruisers,  or  by  payment  of  war 
premiums. 

As  before,  very  earnest  efforts  were  unsuccessfully 
made  in  behalf  of  Insiu'ance  Companies  to  sti'ike  out  the 
proviso  which  excluded  them  from  further  pay  unless 
they  could  show  ultimate  loss. 

Amendments  were  also  oft'eretl  to  provide  for  loss  by 
the  other  cruisers,  and  by  payment  of  war  premiums,  but 
rejected,  Senator  Frelinghuysen  remarking  :  "  There  is  a 
class  of  claims  provided  for  in  this  bill  that  all  agree 
ouglit  to  be  paid.  Now  do  not  let  us  burden  the  bill. 
Hereafter  there  will  be  a  balance,  and  then  provision  can 
be  made  for  the  war  premiums  and  the  other  claims,"  and 
the  bill  passed  the  Senate. 

On  disagreement,  a  conference  committee  was  appointed 
which  adopted  the  Senate  plan  creating  a  new  court,  and 
including  only  the  sufferers  provided  for  in  the  Senate 
bill,  but  enacting  that  the  balance  of  the  money  "  shall 
be  and  remain  a  fund  fi'om  which  Congi'ess  may  hereafter 
authorize  the  payment  of  other  claims  thereon." 

Tliis  bill  became  law  January  23,  1874.  The  Court 
which  it  created  convened  July  22,  1874,  and  would  ex- 
pire by  limitation  January  22,  1876. 

At  the  second  session  of  the  Forty-Third  Congress  a 
bill  (II.  R.  471 5)" was  reported  from  the  House  of  Repre- 
sentatives Judiciary  Committee,  providing  indemnity  for 
loss  by  all  Confederate  cruisers  not  provided  for  by  the 


13 

act  of  1874,  and  dividing  the  ])alance  among  Insurance 
Companies  and  those  wlio  paid  them  the  war  premiums ; 
also  a  special  hill  (H.  R.  4845)  in  my  favor,  but  no  action 
was  reached  in  either  House  or  Senate. 

It  being  apparent  by  the  time  the  Forty-Fourth  Con- 
gress assembled  that  the  Court  of  Commissioners  of  Ala- 
bama Claims  could  not  complete  its  work  in  the  time 
allowed,  a  law  was  enacted  extending  its  duration  until 
July  22,  1876. 

Its  labors  had  so  far  progressed  as  to  show  that  a  very 
large  balance  of  the  Geneva  Award  fund  would  be  left 
after  the  claims  provided  for  by  the  law  of  June  28,  1 874, 
should  have  been  paid. 

The  question  to  whom  this  balance  should  be  paid  at 
once  became  prominent.  Bills  were  introduced  in  Senate 
and  House,  and  warmly  advocated  by  several  celebrated 
attorneys  for  Insurance  Companies,  to  give  it  to  them,  by 
repealing  the  proviso  which  denied  them  payment  beyond 
their  actual  loss. 

Bills  providing  indemnity  to  other  sufferers  for  such 
loss  occasioned  by  all  the  Confederate  cruisers,  and  by 
payment  of  war  premiums,  were  also  introduced,  and  re- 
ferred to  the  Judiciary  Committees. 

A  sub-committee  of  four  members  of  the  H.  E,.  Judi- 
ciary Committee,  after  careful  and  exhaustive  examination, 
•unanimously  agreed  upon  a  bill  which  followed  the  theory 
and  mode  of  distribution  already  embodied  in  the  law  of 
June  2-^,  1874,  in  that  it  so  extended  its  provisions  as  to 
give  indemnity  (to  the  extent  of  the  fund  only)  for — 

First^  actual,  ultimate  loss,  caused  by  all  the  Confed- 
erate cruisers ; 

Second,  for  such  loss  by  payment  of  war  premiums, 
thus  providing  the  same  redress  for  other  Insurance  Com- 
panies and  for  other  sufferers  as  was  already  provided  by 
the  law  for  most  of  the  Insurance  Companies. 

For,  althouo-h   the    lltli    section  of   the  law  of  1874 


14 

seemed  to  .idniit  only  damage  caused  by  the  Alahama, 
Florida,  and  tlieir  tenders,  and  the  Shenandoah  after 
Mell)onrne,  the  12th  section  allowed  Insurance  Compa- 
nies whicli  liad  lost  by  either  of  these  cruisers,  and  thus 
obtained  a  standing  in  the  Court,  in  making  up  their 
account  to  include  all  they  had  paid  for  destructions  by 
all  the  Confedei'ate  cruisers,  and  also  all  they  had  paid 
for  wai'  premiums. 

This  bill,  however,  went  beyond  the  theory  of  the  law 
of  1874  (which  allowed  indemnity  only  to  tlie  extent  of 
actual  loss)  in  that  it  ])rovided  that  if  a  l>alance  of  the 
fund  should  remain  after  paying  for  actual  loss,  rather 
than  return  it  to  Enoland  or  cover  it  into  the  United 
States  Treasury,  it  should  be  given  to  Insurance  Compa- 
nies in  payment  beyond  their  net  loss. 

The  H.  R.  Judiciary  Committee  adopted  this  bill,  and 
reported  it  to  the  House. 

A  minoi'ity  of  the  committee,  headed  by  Mi',  Knott,  its 
chairman,  adopted  the  theory  that  the  tindings  of  the  Tri- 
bunal at  Geneva  left  no  discretionary  power  to  the  Gov- 
ernment of  the  United  States  as  to  the  distril)ution  of  its 
award. 

They  I'eported  a  substitute  repealing  tlie  proviso  which 
restricted  Insiu-ance  Companies  to  indemnity  for  their  net 
loss,  and  suggested  that,  should  there  still  be  a  surplus, 
"  national  honor  would  perhaps  require  that  it  shoidd  be 
returned  to  Great  Britain," 

This  minority  report  was  rejected,  receiving  but  35 
votes. 

Tlie  bill  of  the  committee  was  so  amended  as  not  to 
pay  Insurance  Com})anies  beyond  their  actual  loss,  but  to 
leave  unex])ended  any  balance  which  might  remain,  thus 
making  it  accord  exactly  with  the  theory  of  existing  law. 

As  thus  amended,  the  bill  was  passed  by  the  House  of 
Representatives,  July  6,  1876. 

No  action  was  reached  'in  the  Senate,  except  to  pass  a 


15 

bill,  which   became   law,  extending  the   duration  of  the 
Conrt  until  January  1,  1877. 

Meantime  the  anxiety  of  attorneys  for  Insurance  Com- 
panies to  have  the  proviso  requiring  them  to  account  for 
their  receii)ts  for  Avar  premiums  repealed  was  explained 
by  the  proceedings  of  the  Coui-t  of  Alabama  Claims,  which 
show  that  most  insurers  were  benefited  instead  of  injured  by 
the  faults  of  England  complained  of  by  the  United  States. 

Only  three  companies  showed  a  net  loss,  and  these  for 
an  aggregate  of  only  $116,870.70,  for  which  amount  they 
received  the  judgments  of  the  Court.^^^^ 

Of  this  $59,850.99  was  paid  by  these  Insurance  Com- 
panies for  war  premiums  on  reinsured  risks,  and  $57,- 
019.71  was  net  loss  by  destructions  of  property. 

A  few  Insurance  Companies  who  lost  to  a  small  amount 
were  not  admitted  by  Article  II  of  the  law.  These  are 
provided  for  in  the  bill  as  it  passed  the  House,  and  awaits 
action  in  the  Senate. 

In  view  of  these  facts  I  humbly,  but  earnestly,  ask  that 
this  bill  may  receive  prompt  and  favorable  attention  by 
the  Senate,  that  I  may  thus  receive  the  indemnity  which 
I  so  fidly  believe  is  justly  my  due,  and  for  which  I  have 
waited  so  long.  The  beneficiaries  of  this  bill  have,  in 
common  with  all  the  people  of  the  United  States,  and  in 
addition  to  their  losses  on  the  sea,  for  which  this  bill  pro- 
vides, sustained  on  the  land  their  full  share  of  all  the 
hardships,  dangers,  losses,  and  expenses  of  the  war. 

If,  after  the  provisions  of  this  bill  are  fully  met,  there 
shall  remain  a  balance  of  the  fund  for  the  benefit  of  all 
the  nation,  no  men  in  all  the  nation  will  be  more  justly 
entitled  to  a  share  of  that  balance  than  those  for  whose 
extraordinary  losses  this  bill  provides. 

E.  W.  METCALF, 

Builder  of  ship  Deljyhine. 


(10)  The  Commercial  Mutual  Marine,  claim  No.  1089 ;  The  Ocean 
Mutual,  claim  No.  1093  ;  The  Mutual  Marine,  claim  No.  1098.  (all  of 
New  Bedford.) 

4261?9 


AN  ACT  for  the  distributiou  of  the  unappropriated  moneys  of  the  Geneva 

award. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assenihled.  That  it  shall  be 
the  duty  of  the  Court  of  Commissioners  of  Alabama  Claims,  in  the 
mode  and  subject  to  all  the  conditions,  limitations,  and  provisions  of 
chapter  four  hundi-ed  and  fifty-nine  of  the  laws  of  the  Forty-third 
Congress,  except  as  changed  or  modified  by  this  act,  to  receive  and 
examine  the  claims  mentioned  in  section  two  of  this  act,  and  to  en- 
ter judgment  for  the  amounts  allowed  therefor  in  two  classes,  sucli 
claims  to  be  tiled  with  the  clerk  of  said  court  within  six  months 
from  the  passage  of  this  act ;  and  said  court  is  hereby  continued 
until  July  twenty-second,  anno  Domini  eighteen  hundred  and  sev- 
enty-seven. 

Sec.  2.  That  the  first  class  shall  be  for  claims  directly  resulting 
from  damage  done  on  the  high  seas  by  Confederate  cruisers  during 
the  late  rebellion,  including  vessels  and  cargoes  attacked  or  taken 
on  the  high  seas  or  pui'sued  therefrom,  although  destroyed  within 
four  miles  of  the  shore,  except  as  provided  for  in  section  eleven  of 
said  chapter  four  hundred  and  fifty-nine.  The  second  class  shall  be 
for  claims  for  the  payment  of  premiums  for  war-risks,  whether  paid 
to  corporations,  agents,  or  individuals,  after  the  sailing  of  any  Con- 
federate cruiser. 

Sec.  3.  That  in  examining  claims  in  the  second  class,  it  shall  be 
the  duty  of  the  court  to  deduct  any  sum  in  any  way  received  by  or 
repaid  to  the  claimant,  diminishing  the  amount  paid  for  any  such 
premium,  so  that  the  actual  loss  of  the  claimant  only  shall  be  al- 
lowed. 

Sec.  4.  That  the  judgments  rendered  by  said  court  under  this  act 
shall  be  paid  by  the  Secretary  of  the  Treasury  out  of  the  sum  of 
money  paid  to  the  United  States  pursuant  to  article  seven  of  the 
treaty  of  Washington,  and  accruing  tlierefrom,  not  appropriated  to 
claims  provable  under  the  j^rovisions  of  said  chapter  four  hundred 
and  fifty-nine,  and  the  act  extending  the  time  for  the  filing  of  claims 
thereunder. 

•  Sec  5.  That  judgments  entered  in  the  first  class  shall  be  paid  be- 
fore judgments  of  the  second  class  are  paid.  If  the  sum  of  money 
so  unappropriated  shall  be  insufficient  to  pay  the  judgments  of  the 
first  class,  they  shall  be  paid  according  to  the  proportions  which 
they  severally  bear  to  the  whole  amount  of  such  una^ipropriated  sum. 
If  such  sum  shall  be  sufficient  to  pay  the  judgments  of  the  first  class, 
and  not  sufficient  to  pay  the  judgments  of  the  second  class,  the  lat- 
ter judgments  shall  be  paid  according  to  the  projiortions  which  they 
severally  bear  to  the  residue  of  such  unappropriated  sum. 

Sec.  6.  That  in  all  other  respects  the  said  judgments  shall  be  re- 
ported and  paid  in  the  mode  provided  for  the  payment  of  judgments 
by  said  chapter  foiu'  hundred  and  fifty-nine,  and  the  act  providing 


I  below 


for  the  payment  of  judgments  rendered  and  to  be  rendered  there- 
under. 

Sec.  7.  That  all  claims  filed,  or  that  may  hereafter  be  filed,  in  said 
Court  in  the  name  of  one  or  more  claimants,  relatiupr  to  a  vessel  in 
which  other  claimants  are  interested,  shall  be  deemed  and  held  to  be 
legally  filed  the  same  as  if  all  the  parties  in  interest  had  joined  in  the 
filing  of  the  petition. 

Passed  the  House  of  Re])resentatives  July  6,  1876. 
Attest:  GEO.  M.  ADAMS,  Clerk. 


\ 


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LOS  ANGELES 
UBRARY 


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This  DOOK  IS  i^  U  Xj  uii  "'"'^  '^^ 

date  stamped  below 


ijiT'-^ 


FEB  1 3  1962 


'9L  JAU  5 


W 


uX.-V.4^36^ 


mt2 


UC  SOUTHERN  Rtbiu 


AA    000  517  3 


5m-6,'41(3644) 


